Why it Might be a Good Idea to Put Dating on Pause During a Divorce

October 16, 2013

Dating during divorce - is it advisable?Just because you're in the process of ending your marriage through divorce doesn't mean that it's the end of all hope for future love, romance or even another marriage in the future. However, while you might be eager to move on with your love life by jumping back into the dating scene, there are a few reasons why you might want to take a step back and put dating on hold until after your divorce is finalized.

  1. Both dating and going through a divorce require a lot of time and attention.

    Going through a divorce can be extremely time-consuming, exhaustive and emotionally draining. This is especially true when the divorce is contested and there are children involved or there are complex, high-valued assets at issue. Jumping into a new relationship might not be the best move as you will need to devote a significant amount of time, energy and resources into finalizing your divorce. Also, if you want your new relationship to be successful then it is advised that you enter into it when you are emotionally, psychologically and financially stable. Otherwise, your new relationship might head down the same path as your marriage did.

  2. Dating could result in issues related to child custody.

    If you are going through a divorce and there are minor children involved then dating can cause several issues that might affect custody and parenting arrangements. First of all, divorce is not only difficult on the spouses involved but also on the children. By bringing a new boyfriend or girlfriend into the children's lives too soon might cause emotions of resentment and confusion to surface as the children have likely not had an adequate amount of time to adjust to and grasp all of the changes the come along with a divorce. Adding another person to the mix is just another change that is not in the best interests of your children.

    Also, keep in mind that custody arrangements might also be affected if your new boyfriend or girlfriend has a bad (i.e. criminal) past. Legal fees will likely skyrocket if the focus of the divorce becomes about the new significant other, rather than just the two spouses.

  3. Infuriating your ex-spouse is not the best idea during a divorce.

    If you begin dating while going through a divorce and your soon-to-be ex-spouse finds out, then he/she might react in a not so pleasant manner, to say the least. Inciting emotions of anger and jealousy will only lead to a more complex divorce as your spouse will be less likely to want to settle with you and the divorce will have less of chance of being as amicable as you had hoped. Finding someone new while ending the relationship with your current spouse will only add fuel to the fire in a contested divorce.

When it comes to dating while going through a divorce, it's important to take a step back and look at the reasons why it might be in your best interest to wait until the divorce is officially over before seeking someone new. Even though you might feel lonely during a divorce and feel a longing to fill an empty space, remember that a divorce is only a bump in the road and that you have plenty of time afterward the divorce is final to begin moving on with your life. Focusing on resolving your divorce, rather than putting your time and energy into dating right away, will likely result in a quicker divorce with hopefully less emotional exhaustion.

Continue reading "Why it Might be a Good Idea to Put Dating on Pause During a Divorce" »

Divorce Tips from Celebrity Divorce Attorney Laura Wasser

Laura Wasser - Hollywood Divorce
Laura Wasser is an LA divorce attorney who represents Hollywood's most famous celebrities. Considering her clientele, Wasser encounters her fair share of drama in her practice. Recently Wasser published a new book entitled "It Doesn't Have to Be That Way" full of intriguing divorce stories and advice for any divorcing couple. Although Wasser has been involved in many divorce battles, she provides her readers with the following ten tips for a civilized divorce.

  1. Marriage is a contract. Although this "tip" seems harsh, it is true. Marriage is a contract between adults and when that contract ends, parties must wrap up their relationship in accordance with default California community property laws (unless a premarital agreement is in place). Further, once the relationship originally established between two people has changed, a new relationship must be discussed and negotiated.
  2. Divorce is a business transaction. Another harsh reality regarding divorce is that it is a business transaction. It may be difficult to calmly divide up the life you shared with your spouse, but emotional outbursts will only hinder the process. Wasser recommends parties keep their cool when negotiating divorce issues. Taking unreasonable positions in an attempt to punish your ex-partner will inevitably increase fees and delay the divorce process.
  3. Dissolve it before it gets ugly. The dissolution process will proceed more smoothly if the parties have maintained amicable feelings toward each other. If the parties still respect and care for each other, they are more apt to reaching mutually beneficial resolutions in the event of a dispute.
  4. Before discussing divorce, consider what you want to say. The opening discussion regarding divorce can set the tone for the entire dissolution process. If the parties openly discuss their options and agree to proceed in a collaborative manner, the divorce will likely proceed much smoother than if the parties open the dialogue with insults and threats.
  5. Keep your feelings to yourself. By wrapping up family, friends and co-workers in your divorce you may disclose too much information. It is important to keep the details of your divorce confidential by only sharing them with your attorney and a therapist if you are seeing one.
  6. Be prepared to share. If you have been the primary earner in the marriage you should be prepared to split all of your marital assets and to pay child and/or spousal support. This legal principal applies regardless of gender. The Court will order a female breadwinner to pay support just as a male breadwinner. Additionally, the parties should begin considering sharing their children and the difficulties of being apart from them.
  7. Do not behave badly in front of your children. For the well-being of your children, it is always best to make every effort not to involve them in the divorce process. This requires both parents to refrain from making disparaging remarks about the other in the presence of the children.
  8. Be graceful under pressure. In the event your spouse takes a "less than graceful" approach to the divorce process, it is important to remain stoic. Regardless of the poor behavior of one party, it is not appropriate to retaliate.
  9. Split assets together. Parties can save significant attorney fees and costs by reaching agreements together regarding smaller assets such as personal property in the family home. Often couples walk through the family home together and discuss what they would like. Read more about property division methods
  10. Don't sleep with your ex-partner. Having a sexual relationship with your ex-partner post-separation can greatly impact your divorce case. A sexual relationship implies the marriage is not over and may change the date of separation.

Continue reading "Divorce Tips from Celebrity Divorce Attorney Laura Wasser" »

Understanding Parental Alienation in California - Part 2

September 24, 2013

What is Parental Alienation pt 2As we have previously blogged in "Understanding Parental Alienation in California Part 1," parental alienation can be extremely detrimental to the children and alienated parents involved. Luckily, there are ways to combat parental alienation and attempt to reunite the child and alienated parent who have been affected by parental alienation.

How Courts Deal with Claims of Parental Alienation

Courts have found ways to address claims of parental alienation and seek remedies that will repair broken relationships and help establish both parents as having a role in raising the child. In mild to moderate cases of parental alienation, a child custody evaluation will typically be performed by an expert to determine how severe the problem is and what kind of therapy and child time sharing should be recommended to help improve the relationship between the child and "alienated" parent.

However, in severe cases of parental alienation, sometimes the only solution is to remove the child from the parent who is alienating the other parent and to instead place the child with the alienated parent. But, before a judge will change the custody arrangement, they will typically require that a psychological evaluation to be done. Unfortunately, such evaluations can take anywhere from three months to a year to complete. In addition, some evaluators will simply argue that the detriment caused by parental alienation can simply be cured with therapy and thus the evaluator will not recommend a custody change to the alienated parent, but instead will recommend a reunification plan involving therapy. If it appears that reunification is not working then the court will typically want the same or new psychologist to re-evaluate the situation, which will take additional time.

Reuniting Alienated Parents with the Child

Reuniting alienated parentsAs an alienated parent, reuniting with your child can pose several challenges. As a result of the parental alienation the relationship with the child is likely very fragile and must be handled carefully in an attempt to repair what has been broken.

However, with proper psychological care, time and patience it is possible to attempt to reverse the effects of Parental Alienation Syndrome and mend your relationship with your child.

It is also advised that the alienated parent not retaliate against the other parent. Rather, if the alienated parent acts reasonably then the parent who is causing the alienation will hopefully be influenced to do the same.

Continue reading "Understanding Parental Alienation in California - Part 2" »

Understanding Parental Alienation in California - Part 1

September 23, 2013

CA Parental Alienation 1While broken marriages can be stressful and emotional for both spouses involved, it is typically the children who end up suffering the most throughout the parents' continued divorce battles. One prime example is where children end up suffering from "parental alienation syndrome," which is commonly associated with child custody battles that occur during and after divorce. Parental alienation can be extremely detrimental to the child and the alienated parent alike.

What is Parental Alienation?

Parental alienation occurs when one parent acts in a manner that attempts to cause the child to reject the other parent by undermining and thwarting the child's relationship with the other parent. The purpose of such alienation is usually an effort by one parent to gain or keep custody of the child.

The following behavior will typically lead to claims of parental alienation:

  • Not allowing the other parent to see or visit the child;

  • Refusing to allow the child to talk to the other parent on the phone;

  • Mis-informing the other parent about child's special events so that it appears that the other parent chose not to attend;

  • Creating a perception that the other parent is dangerous;

  • Discarding mail or gifts sent to the child by the other parent;

  • Creating expectation that the child must choose a side; and

  • Bad-mouthing the other parent.

Parental Alienation's Effect on the Children - PAS

What is Parental Alienation pt 1Parental Alienation Syndrome ("PAS") is a form of psychological injury to the child as a result of the above behaviors, wherein the child becomes "brainwashed" or manipulated into viewing the alienated parent in a negative light. As a result, the child adopts negative views of the other parent which in turn causes the child to reject the other parent and choose no longer want to spend time with that parent.

This can be extremely detrimental for any child. However, it is important to note that Parental Alienation Syndrome is not recognized a psychiatric diagnosis, but rather it is a theory that was developed by Dr. Richard Gardner. Nonetheless, there is even scholarly consensus that parental alienation (which leads to Parental Alienation Syndrome) is a form of abuse to children.

Parental Alienation's Effect on the Parents

The impact of parental alienation is not only detrimental to children involved but also to the alienated parent, who involuntarily loses contact with the child, which in turn impairs his/her relationship with the child. In severe cases of parental alienation, the love and bond that the alienated parent once had with the child may be completely destroyed beyond what seems possible to repair.

In Understanding Parental Alienation in California Part 2 we will explore ways that courts deal with claims of parental alienation and tips for reuniting the alienated parents with their children.

Continue reading "Understanding Parental Alienation in California - Part 1" »

What Does it Take to Finalize a Divorce in San Diego?

September 20, 2013

California Family Law Judgment FL-180Another one bites the dust. TMZ reports that singer, Ben Harper, and actress, Laura Dern, are officially divorced. In 2010, after five years of marriage and two children later, Harper filed for divorce to Dern's surprise. The couple reportedly tried to reconcile back in 2012, which turned out to be an utter failure. Now a year later, a Judge has signed off so they are officially divorced and will now be restored to their "single person" status.

Read more about the divorce from TMZ.com

So how exactly do divorcing couples, like Harper and Dern, know when their divorce is officially finalized? In other words, when can they truly move on with their lives and know that their marital status has been restored to "single" person status? In California, a divorce cannot be absolutely finalized until: all of the issues are resolved, a judgment has been signed by a judge and processed by the court, and the six month waiting period has lapsed.

Resolution of All Issues

Issues related to divorce (division of property, custody, child and spousal support, etc.) can be resolved by default, agreement by the parties, through court proceedings where the judge makes an order, or a combination thereof.

The California Divorce 6 Month Waiting Period

Many of our San Diego clients are familiar with the "six month rule". This rule is codified in California Family Code Section 2339(a), which states that marital status cannot be terminated any sooner than six months from the date that the Respondent was served with the petition for dissolution of marriage or the date of appearance of the Respondent, whichever occurs first. One purpose of this six-month waiting period in California is to give the parties a chance to reconcile or reconsider pursuing the dissolution. Many divorcing couples will often times give the marriage one last shot. However, if the parties fail at reconciling, like Harper and Dern did, or have simply have no intention at all to reconcile, then they still cannot get a divorce until the six month waiting period has been met. The parties may prepare and even finalize their divorce judgment prior to the end of the six month date, however, they will not become "officially" divorced until the six months has lapsed. However, if the parties do not resolve all of the issues prior to the six month date, then they will not be automatically divorced on that date.

Final Divorce Judgment

Once all issues have been resolved, then all of the necessary paperwork must be filed with the court. Thus, even if all issues have been resolved and the six month rule is met, a divorce is not truly final until there is actually a judgment signed by a judge and processed by the Court. The parties will receive a Notice of Entry of Judgment, which means the Judgment is or has been processed but they need to wait for the rest of the Judgment documents, which will be returned to the person who filed them once the Court is done processing them and it will note the date upon which the parties will be restored to the status of single persons.

If you are interested in properly finalizing a divorce from your spouse we can provide you with information and guide you through the process. Our team of experienced attorneys is prepared to litigate on your behalf. If you wish you schedule a consultation with Nancy J. Bickford, please call us at (858) 793-8884.

Continue reading "What Does it Take to Finalize a Divorce in San Diego?" »

Do San Diego Courts Favor Mothers in Child Custody Decisions?

September 16, 2013

California child custody lawsCalifornia child custody laws have most certainly evolved during our history as a state. Historically, it appeared that mothers were favored in court to get custody of the parties' children just because they were female. Mothers were pretty much guaranteed to get custody of the children, while even the best fathers were only given a limited visitation schedule while the children. Perhaps this was because traditionally mothers were viewed to be the more nurturing of the two parents; they were viewed as the parent who does everything in their power to make sure the children are taken care of properly and grow up right.

Despite popular belief, such favoring of mothers in child custody arrangements is not the case today. In this modern day in age, most states' laws actually prevent the courts from considering a party's gender when making a ruling on child custody. In San Diego, courts grant equal rights to both mothers and fathers in child custody cases. California Family Code Section 3040 specifically states that "custody should be granted... according to the best interest of the child...and shall not prefer a parent as custodian because of that parent's sex." Moreover, it is the public policy of California to ensure that children have frequent and continuing contact with both the mother and father.

Read more about child custody and visitation modification

The legal standard of "the best interests of the children" requires a court to take various factors into consideration, not including gender, when making a decision regarding the care and custody of the parties' children. The Family Code sets forth various factors that a court will consider, including but not limited to, the following:

  • Any history of abuse or neglect by either parent;
  • The habitual or continual illegal use of controlled substances;
  • The habitual or continual abuse of alcohol or prescribed controlled substances by either parent;
  • The overall health, safety and welfare of the child;
  • The requests of the parents;
  • The requests of the child if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation (Family Code 3042);

Thus, the main concern of any San Diego family law court is what custody and visitation arrangement is going to be consistent with the children's best interests. A parties' sex, therefore, will not determine who gets priority for being awarded the care and custody of the children involved.

Continue reading "Do San Diego Courts Favor Mothers in Child Custody Decisions?" »

Who Decides Which School the Kids Will Go to After a Divorce?

September 13, 2013

Crayons - Kids in school after divorceA divorce can be quite devastating for all parties involved, especially the children of divorcing couples whose lives are often affected in a variety of ways. One issue that frequently arises during a divorce is a dispute over where the children will attend school after the parents have moved their separate directions. Children with parents involved in an active divorce case at family court often worry that they will be uprooted from the friends and teachers that they have come to know, or that they will bounce around between different schools each year.

So who exactly gets to decide where the minor children will go to school after a divorce? Divorce lawyers will advise their clients that the answer depends on the custody order. When one parent has sole legal custody, then that parent has the right to choose which school the children will attend without the input of the other parent. On the other hand, when parents share joint legal custody, they have to agree on various important decisions related to the children, including which school to send their children to.

Playing - Kids in school after divorceThus, one parent cannot enroll the parties' minor children into a school without the consent of the other parent. If the joint custody/parenting plan doesn't already address the issue of which school the children will attend, then the parents either have to come to an agreement on their own, agree in mediation, or direct their family law attorney to file a motion and take it to court for the Judge to decide. If the Judge is left to decide which school the minor children will attend, the Judge will typically look at what is in the best interests of the children. Some factors include, but are not limited to, desires of the children/parents, previous school selection by the parents, academic standard, proximity to custodial parent, children's educational needs, commuting time from each parent's home, tuition cost, etc. In situations where the children are already attending a certain school, then the likelihood of them continuing to attend that school is quite high, unless a compelling case is made that continuing attendance at that particular school is not in line with the children's best interests. However, when the children are about to start kindergarten or are transitioning into a middle school, junior high school, or high school, then the decision might be a bit more complicated and the Judge will have to take various factors into consideration.

Continue reading "Who Decides Which School the Kids Will Go to After a Divorce?" »

Custody of Pets - Who Gets the Pets in a Divorce?

September 12, 2013

Dog - custody of pets in divorceA common issue that comes up during the divorce process with our San Diego family law clients is how to divide the beloved family pets. It's not uncommon for pet owners to view their dogs, cats, birds, horses, etc. to be part of the family, much like a child. However, unlike children, California courts cannot divide a pet by way of a custody and visitation arrangement. Instead, pets are considered to be a piece of the marital property and can be given to only one of the pet owners in the divorce, not both of them.

Dividing Pets in Court

There really is no way to predict what a Judge will decide if you take your claim regarding the family pet to court. Judges will often consider some of the following factors of the divorce:

  • When the pet joined the family and whether one party had the pet before marriage;
  • Who the primary caretaker is (which spouse is typically responsible for grooming, feeding, walking and day-to-day care);
  • Who has more space for the pet to play and exercise;
  • Who has more time to be able to spend with the pet;
  • Whether either party has abused the pet and is therefore unfit to be awarded the pet; and
  • Which party has the greatest emotional bond with the pet.
Cat - Pet custody in divorce

Dividing Pets Outside of Court

Although courts will not consider options for sharing a pet, spouses do have the option to come to an agreement outside of court regarding sharing custody of the pet or giving the other spouse visitation rights of the pet after a divorce.

If keeping custody of your pet after a divorce is very important to you, it might be best to keep the issue out of court and instead try to negotiate a shared custody arrangement with your soon to be former spouse or compromise regarding giving up other marital assets in order to keep the pet. However, you have to prepare yourself to be willing to give up some pieces of marital property that your soon to be former spouse wants, so that in exchange you can keep your beloved pet. Although difficult, you have to weigh what is more important to you.

It is also important to keep the best interest of the pet in mind. For instance, if you have minor children too, it might be best for the parent who has custody of the children to also have "custody" of the pet. Also, you should consider whether you will truly be able to give the pet the love, care and attention that it requires. If you know that you have a busy schedule, your finances are going to be extremely tight following divorce, or if perhaps you are moving into a new place without adequate space for the pet, then maybe it would actually be in the pet's best interest to be given to your soon to be former spouse.

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How Does Divorce Affect My Credit Score?

September 11, 2013

Money sign - how does divorce affect credit?Along with the emotional challenges of a divorce, financial challenges often also accompany a divorce proceeding. In relation to the many financial challenges, one question that often comes to the mind of our San Diego clients is:

How does divorce affect my credit?

The fact that you are now divorced won't directly affect your credit, credit scores or credit history. This is because your creditworthiness is not based on your marital status. However, divorce can indirectly affect your credit in a number of ways, and usually not in a good way.

Most couples incur joint financial debts during the marriage. These may include credit card debts, car loans, mortgages, etc. While a divorce decree may order one of the spouses to pay off a given joint debt through a court order or settlement, each joint debt is linked to both spouses unless certain steps are taken to sever the union. Therefore, if the party who is ordered to pay the debt makes late payments or just completely fails to pay, both spouses will end up with red flag on their credit reports and as a result their credit scores will likely plummet.

Luckily, there are ways in which you can deal with joint financial obligations between you and your ex-spouse in an effort to avoid a significant negative impact on your credit.

Credit Cards

It is very common for married couples to have joint credit card accounts. After a divorce, once the credit card debt has been allocated to one spouse or the other, the best way to avoid a negative impact on your credit score it to make sure that your name is removed from the credit card accounts that you are no longer responsible for. If your name is removed from the credit card then the creditor can no longer seek collection from you. Therefore, if your ex-spouse fails to pay the credit card debt, it will only affect his/her credit and not yours.

Car Loans

One way to get either your name or your ex-spouse's name off the car loan is to title the car in the name of the spouse who gets to keep it and then have that spouse refinance the auto loan in his or her name only. Refinancing a vehicle is typically pretty easy and once the refinance is done, the spouse whose name was removed will no longer be responsible for the future loan payments.


If you bought a house while you were married, there is a good chance that both you and your ex-spouse are on the mortgage loan. So even if only one spouse continues to live in the home after a divorce, both spouses are still liable to pay the mortgage. Removing one spouse from the mortgage can be a bit tricky but it is definitely a priority if you don't want your credit to be negatively impacted.

If you are worried about how a divorce may affect your credit score, it may be a good idea to get assistance from an experienced family law attorney to help guide your through the divorce process and insure that you take the necessary steps to avoid a credit nightmare. Nancy J. Bickford is the only attorney representing clients in San Diego, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Call 858-793-8884 to receive assistance today and take steps to ensure that your credit score is not adversely affected by your divorce.



Does anybody ever win in divorce?

Family Law DisputesDue to the nature of California family law, divorce lawyers have a tough job when it comes to pleasing the client. Many divorce lawyers are proficient practitioners who are skilled in court room advocacy, preparing appropriate pleadings, and getting people divorced. However, at the end of a family law case, both parties walk away from each other with less than they started with and the emotional strain of separation. Undoubtedly in every divorce case, bank accounts and retirement plans will be divided, debt will be assigned, valuable property will be sold and the parties must figure out a new way of life. Family lawyers often work tirelessly to ease the stress of divorce for the client by attempting to create mutual beneficial solutions for the parties outside of the courtroom.

Divorce settlement San DiegoIf the parties cannot reach an agreement on all issues in a divorce case, they must face each other as opponents in trial. Any family law trial is incredibly expensive for both parties to litigate. In fact, many trials can be more costly than the item(s) over which the parties are arguing. Another unfortunate reality about litigation in family law cases is that litigation is often funded by the liquidation of the community assets.

This means that the longer the parties battle on, the more the "pot" left to divide shrinks. After all of the arguments, hearings, and trials are over, the parties may not have any assets left to share. In order to avoid that outcome, family law attorneys work to help the client consider the cost-benefit analysis for each dispute.

Family law litigants often become frustrated with the settlement process in cases where one spouse remains firm in his or her positions and is unwilling to compromise on any issue. In these cases, the spouse who is willing to engage in "back and forth" settlement offers may feel cornered and vulnerable. The cooperative spouse will likely see no other option than to yield to every demand of the unreasonable party.

Family Law TrialThe only alternative is a lengthy, expensive and draining trial. The emotional and financial cost of trial is rarely worth a potentially successful outcome. This problem is only compounded when the spouse and his/her attorney are confident they will prevail if a disputed issue is litigated; however, they must rescind their position to preserve the community estate.

There are many opportunities throughout the divorce process for parties to reach a settlement on disputed issues. If child custody and/or visitation are involved in the case, the parties are required to attend mediation at Family Court Services. A mediator will work with both parties and attempt to create a mutually agreed upon custody and child sharing arrangement.

In addition, before any issue proceeds to trial, the parties are required to attend a Mandatory Settlement Conference ("MSC"). At the MSC, a family law expert will work with the parties in an attempt to settle all issues which could potentially go to trial. Both of these services are provided without charge for family law litigants. WCENY8KDWAEH

Continue reading "Does anybody ever win in divorce?" »

Getting a Mortgage After Divorce - Is it Impossible?

August 27, 2013

House after divorceA divorce almost always results in a change in housing for one or both spouses. As if qualifying for a new mortgage isn't hard enough, unfortunately, getting a mortgage after a divorce can be further complicated by several factors related to the dissolution. During a divorce proceeding, family lawyers frequently answer the question:

"How do I get a mortgage after a divorce?"

Mortgage lenders look at your overall debt-to-income ratio to see what you quality for. Thus, it is important to keep in mind that the following liabilities will be considered as part of your ability to qualify for a mortgage:

  • Child and Spousal Support Obligations: Lenders will look for any undisclosed financial obligations such as the payment of child support or spousal support pursuant to the divorce decree. These financial obligations will, unfortunately, reduce your ability to qualify for a mortgage because they are looked at as debts, which reduce your income.
  • Credit card debt, student loans, and automobile loans: These liabilities will also be considered as part of your ability to qualify for a mortgage unless you are able to prove that your ex-spouse is responsible for the credit obligation by showing twelve months of canceled checks or bank statements.
Although getting a mortgage after divorce can be complicated by the above factors, with some extra planning, discipline and awareness, it surely is not impossible. Here are some tips to help make it easier to get a mortgage after divorce:
  • Disclose receipt of child support and/or spousal support: The income received as child support and/or spousal support pursuant to your divorce decree can be used to help you qualify for a mortgage.
  • Carefully review your credit report: Make sure the accounts on your credit report belong to you only, not jointly with your ex-spouse. This can be quite a process and time some time to sort through but it is worth it because, for instance, if your ex-spouse pays a debt (pursuant to the divorce decree) late that is on your credit report, it will negatively affect your credit score and make it harder to qualify for a mortgage.
  • Provide evidence that ex-spouse is responsible for current mortgage: You can improve your ability to qualify for a new mortgage if you own a house and are currently on a mortgage with your ex-spouse but the divorce decree awards the home to your ex-spouse and he/she is willing to provide evidence that they make the mortgage payments on the home.

Continue reading "Getting a Mortgage After Divorce - Is it Impossible?" »

Is My Prenup Valid? How the Date May Affect Validity

Premarital Agreement - PenThe date of a premarital agreement (commonly referred to as a "prenup") will determine the law applicable to its enforcement and validity. The law related to the validity and enforcement of premarital agreements has changed substantially throughout the past 30 years. Divorce attorneys are frequently asked the question:

"Is my prenup valid?"

Any premarital agreement executed after January 1, 1986 is subject to the Uniform Premarital Agreement Act (UPAA). However, prior law continues to govern any pre-1986 premarital agreements. In 2002, portions of the UPAA were significantly amended. Again, those changes do not apply retroactively so the 1986 version of the UPAA applies to all premarital agreements executed between January 1, 1986 and January 1, 2002. So, considering all of these timelines, the following is a list of differences to examine:

Premarital Agreement Executed Between 1/1/1986 and 1/1/2002

  • Relaxed statutory disclosure standards - Spouses are held to a lower duty to make a fair, reasonable, and full disclosure regarding property or financial obligations
  • Burden of proof - The party claiming the premarital agreement is unenforceable bears the burden of proof on that contention.
  • Representation of counsel - No requirement that party against whom enforcement is sought was represented by an attorney at the time the premarital agreement was executed.
  • Waiting period - No mandatory waiting period between presentation of premarital agreement to a party and the date it is signed.
  • Spousal Support Waiver - Relaxed statutory requirements applied to spousal support waiver.

Premarital Agreement Executed Between 1/1/2002 and the present

  • Heightened statutory disclosure standards
  • Burden of proof - Burden shifts to party attempting to enforce the premarital agreement to prove it was executed voluntarily.
  • Representation of Counsel - Party against whom enforcement is sought must have been represented by independent counsel or signed an express waiver of representation in a separate document.
  • Waiting period - There must be at least seven days between the date a party is first presented with the premarital agreement and the date it is signed.
  • Spousal Support Waiver - A spousal support waiver in a premarital agreement must meet strict statutory standards in order to be enforceable.

Continue reading "Is My Prenup Valid? How the Date May Affect Validity" »

New Tax Considerations After DOMA Overturned

DOMA - Defense of Marriage ActThe Defense of Marriage Act (DOMA) was enacted on September 21, 1996 and permitted the states to refuse to recognize same-sex marriages legally entered into in other states. This means that under DOMA, if a same-sex couple who legally married in Hawaii moved to California, California would not be required to recognize the marriage and provide state benefits otherwise provided to married couples. In June 2013, the Supreme Court of the United States declared DOMA unconstitutional. In the aftermath of that landmark decision many same-sex couples are questioning whether they will receive any retroactive relief for the various benefits they were deprived of for nearly seventeen years.

New York legalized same-sex marriage in June 2011 and extended equal rights under estate tax law to legally married same-sex couples in July that same year. Estate tax rights were even extended to those married in other states before New York legalized same-sex marriage. However, federal laws prevented New York from implementing any retroactive application of the estate tax law. This problem came to light when Edie Windsor sued the IRS for denial of her right to inherit granted to other married couples. In 2009, Edie paid $363,000 in federal taxes upon the death of her spouse. As their marriage was not federally recognized under the tax code, she was unable to reap estate tax benefits available to married couples. The Supreme Court held Edie was entitled to a tax refund.

Same sex marriage wedding ringsSimilarly, since Massachusetts issued the first marriage license in the United States to a same-sex couple in 2004, wedded same-sex couples have been unable to file joint federal tax returns. Although a same-sex couple may be married under the laws of their home state, they were unable to claim any federal tax benefits. Now that such federal tax laws have been overturned, same-sex couples question whether they can retroactively realize federal tax benefits back to the date of their marriage.

In general, a tax refund can be claimed within three years of filing the incorrect tax return or within two years of the overpayment. Under this common rule, same-sex married couples may be able to collect overpaid taxes for the past three tax years. Some have rumored that the IRS will extend this typical statue of limitations to allow same-sex married couples to collect tax refunds even further back.

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Child Custody and Visitation - Madonna & Guy Ritchie Lead by Example Post-Divorce

In January 2009, Madonna and Guy Ritchie finalized their divorce after eight years of marriage. At the time of their split, many rumors surfaced regarding an acrimonious divorce and possible affairs. Madonna is often cited as the source of the "adoption trend" for celebrities. In fact, as a mother of four children, Madonna only has one biological child with Ritchie, their son Rocco. In July 2013, Ritchie had his bar mitzvah at the Kabbalah Centre in New York City. Despite any lingering bitterness between Madonna and Ritchie, both parents attended their son's bar mitzvah and behaved admirably.

Madonna and Ritchie are not the only celebrities to work together for the sake of their children. As we have previously blogged, Charlie Sheen recently spoke out on behalf of his ex-wife Denise Richards in her custody battle with another one of Sheen's wives, Brooke Mueller. Jennifer Lopez and Marc Anthony announced their surprising split two years ago this summer. However they are often seen together at events supporting their twins. In fact, Lopez and Anthony have even managed to maintain their working relationship post-divorce.

Divorce can be an incredibly difficult time for all parties involved, especially children. It is important for both parents to make every effort to make the transition as seamless as possible for the children. The assistance of a mental health professional may be beneficial for all parties involved. In family law cases, therapists often recommend that both parents remain actively involved in a child's life which may require attending the same events and celebrations. In the interest of promoting stability and normalcy for the children, divorcing parents can decide to continue spending important holidays together with their children. Although the holiday may not be pleasant for the parents, the children cherish time spent together as a family.

Sharing Child Custody at a soccer gameIt is important to consider that in some cases, it may not be in the best interest of the children for divorced or divorcing parents to interact. Where there is a history of domestic violence between the parties or if a restraining order is in place, parents should refrain from all contact.

Additionally, if the parties cannot tolerate each other, engage in arguments in front of the children, or consistently make disparaging comments about the other parent, they should likewise refrain from all contact. Most, if not all, agreements and orders regarding custody/visitation require the parties to co-parent peacefully. Thus, any disparaging conduct may be a violation of a court order.

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California Alimony Calculation - Fringe Benefits as Income Available for Support

California Alimony CalculatorOne of the biggest battles in many contested divorce cases is the issue of spousal support (also commonly referred to as alimony) and analysis of California spousal support factors. The most prominent factors a court typically considers when making a spousal support award are the supported spouse's needs and the supporting spouse's ability to pay support. Therefore, the supported spouse wants to make sure the court considers every single source of income the supporting spouse has available for support. The supporting spouse wants to minimize his/her income as much as possible without misleading the Court or the other party. One issue that has been litigated in California courts is whether fringe benefits or "perks" received through employment are income available when calculating support.

Many companies offer alternative compensation or perks to employees such as car allowances, cell phones, business meals, and company-provided day care. Parties and attorneys often debate whether these "non-cash" perks should be considered income from which the supporting spouse can pay support. Under California law, perks can be considered as income available for support if the benefit is not being divided as an asset and it has an economic value which can be added to the spouse's income for the purposes of support calculation.

Learn more about division of property in divorce

Cell Phone as Fringe Benefit in Alimony CalculationIn cases where a benefit will directly reduce the supporting spouse's monthly expenses, divorce attorneys will argue that it should be considered as income for support purposes. For example, if the supporting party's employer pays for his/her cell phone every month and the cell phone is not limited to company use, the supporting party will not have to pay monthly cell phone premiums for personal use of a cell phone.

Likewise, if a company pays for the supporting party's gas or auto insurance, the supporting party will not pay those expenses out of pocket. In these situations, the fringe benefit will likely be valued and included as income available for support.

Another major issue of contention in this area of law is whether the value the benefit assessed should be considered "taxable" or "non-taxable" income. According to the divorce attorneys at the firm, one California case holds that tangible benefits should be included as taxable income. However, until the employee actually pays taxes on such benefits it is unfair to consider them as gross deductions.

Business Lunch as Fringe Benefit in Alimony CalculationIn addition, some benefits such as a business meal may not reflect the cost of a normal meal. The supporting spouse may get to eat a $50.00 lunch on the company's dime; however, if he/she had bought their own lunch, he/she would likely have spent less than $10.00. The court will use discretion in considering a request from a party or divorce attorney to categorize these types of benefits as income where the result might seem unreasonable.

Read more about the effect of divorce on taxes and finances

Unfortunately, there is no such thing as a San Diego spousal support calculator, and analysis of the factors affecting spousal support in California is complicated. Often times, a person will need to rely on the advice of an experienced and knowledgeable divorce lawyer in order to understand the theories and process involved.

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